Ganesh Kumar Vs D.N. Nirmala Kumari

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.01.2023 PASSED IN RA.No.4/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.11.2012 PASSED IN OS No.81/2005 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the judgment and decree dated 02.01.2023 passed in R.A.No.4/2013 by the Senior Civil Judge, Kundapura, confirming the judgment and decree dated 27.11.2012 passed in O.S.No.81/2005 by the II Additional Civil Judge and JMFC, Kundapura.

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For convenience, the parties are referred to,

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based on their rankings before the trial Court. The appellants were the defendants, and the respondent was the plaintiff.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for ejectment. It is the case of the plaintiff that the plaintiff is the owner of the suit schedule property. Originally, the suit schedule property was belonging to one Smt. Puttamma, who was the mother-in-law of the plaintiff. After her demise, the plaintiff had succeeded to the suit schedule property under a Will. It is contended that one Smt. Kalyani was a tenant regarding the house bearing Municipal Door No.95/V, situated in the suit ‘A’ schedule property. Smt. Kalyani died on 22.10.1998. Defendant No.1 is the younger sister of Smt. Kalyani and defendant No.2 is the son of defendant No.1, and upon the demise of Smt. Kalyani, defendant No.1 started contending that she was a tenant in the place of Smt.Kalyani, on monthly rent of Rs.60/-. Smt. Kalyani died; during her lifetime she committed a default in the payment of rent. Smt. Puttamma has not initiated any proceedings against Smt.Kalyani due to her old age. The

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plaintiff issued a legal notice to the defendants on terminating the tenancy and calling upon them to vacate the suit schedule premises. The said notice was duly served on the defendants. The defendants replied to the said legal notice, returning to vacate the suit premises. Hence, a cause of action arose for the plaintiff to file a suit for ejectment. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement admitting the relationship of landlord and tenant between Smt.Puttamma and Smt. Kalyani. Defendant No.2 filed a memo adopting the written statement filed by defendant No.1. It is contended that after the demise of Smt.Kalyani, defendant No.1 paid the rent to Smt. Puttamma by remitting the same to the savings bank account No.5904, with the Karnataka Bank Ltd., Kundapura Branch. Defendant No.1 paid the entire rent till the death of Smt. Puttamma. It is contended that defendant No.1 filed a suit in O.S.No.141/01 for the relief of bare injunction against Smt. Puttamma. The said suit was dismissed as abated in

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view of the death of Smt. Puttamma. It is denied that the defendants are the trespassers. Accordingly, on these grounds, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the relevant issues.

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To substantiate her case, the plaintiff examined herself as PW.1 and marked seven documents as Exs.P1 to 7. On the other hand, defendant No.2 was examined as DW.1 and marked fourteen documents as Exs.D1 to 14. The trial Court, on the assessment of oral and documentary evidence, decreed the suit of the plaintiff with costs, vide judgment dated 27.11.2012. The defendants were directed to vacate the suit schedule premises bearing Door No.95/V of the TMC, Kundapura, in Sy.No.144-3A of Kundapura Kasaba Village and to pay to the plaintiff, future mesne profits at the rate of Rs.2,000/per month from the date of the suit till the delivery of the possession. The defendants were also directed to pay the

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plaintiff, a sum of Rs.2,160/-, towards arrears of rent from 17.01.2002 to 16.01.2005.

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The defendants, aggrieved by the judgment and decree passed in O.S.No.81/2005, preferred an appeal in R.A.No.4/2013, on the file of learned Senior Civil Judge, Kundapura. The first appellate Court on reassessment of the oral and the documentary evidence, dismissed the appeal vide judgment dated 02.01.2023.

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The legal representatives of deceased

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defendant No.1 and defendant No.2, aggrieved by the impugned judgments, filed this regular second appeal.

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Heard the arguments of learned counsel for the

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defendants.

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Learned counsel for the defendants submits

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that the Courts below have committed an error in passing the impugned judgments. He submits that the trial Court committed an error in granting mesne profits without

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holding an enquiry under Order 20 Rule 18 of CPC. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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It is not in dispute that Smt. Puttamma was the owner of the suit schedule property. She bequeathed the suit schedule property in favour of the plaintiff under a registered Will. After the demise of Smt. Puttamma, the plaintiff, became the absolute owner of the suit schedule property. During the lifetime of Smt. Puttamma, she had let out the suit schedule property in favour of Smt.Kalyani on a monthly rent of Rs.60/-. Smt. Kalynai died. After the demise of Kalyani, defendant Nos.1 and 2 continued to be in possession of the suit schedule property as tenants. The plaintiff issued a notice terminating the tenancy of the defendants under Section 106 of the Transfer of Property Act, 1882. The defendants replied to the legal notice. From the perusal of the records, it is clear that there was a relationship of landlord and tenant between the plaintiff

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and the defendants. The plaintiff issued a legal notice of terminating the tenancy of the defendants. Even after the termination of tenancy, the defendants continued to be in the possession of the suit schedule property. The defendants’ tenancy has been already terminated, and they have no right to continue in the possession of the suit schedule property. The trial Court, considering the entire evidence on record, the relationship between the plaintiff and the defendants, as landlord and tenants, and the plaintiff has terminated the tenancy, has rightly passed the impugned judgment. The first Appellate Court, on reassessment of oral and documentary evidence, rightly affirmed the judgment and decree passed by the trial Court. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The Appeal is dismissed.

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ii. The judgments and decrees passed by the Courts below are hereby confirmed.

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iii. Learned counsel for the defendants, on instructions, undertakes to vacate the premises within six months from today, failing which, the plaintiff is at liberty to take possession by due process of law.

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iv. Learned counsel for the defendants also submits that the defendants will file an affidavit of an undertaking within the four weeks before this Court. He is permitted to file an undertaking affidavit.

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In view of the dismissal of the appeal, I.A.Nos.1/2023 to 3/2023 do not survive for consideration

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and are accordingly disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

Ganesh Kumar v. D.N. Nirmala Kumari

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Ganesh Kumar v. D.N. Nirmala Kumari

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